Section 19: change "effectively controlled by" clause with "beneficial to and considerably controlled by"
Once the global economic crisis subsides, I believe replacing this constitutional mandate will further encourage foreigners to invest in our country and provide much needed capital for economic development.
ARTICLE VI
Section 2 (1) How Senators are elected
If 3 or more senators will represent each state, I suggest a proportional representation system with a minimum qualification threshold as the most appropriate mode of electing federal senators within the state. A deciding factor for this suggestion is the strengthening of party politics away from personal politics. This way also, the lost of representation in terms of the minority vote is almost nil (less is better than none), which in winner-takes-all electoral systems may mean one party rule in terms of all senators elected within a state.
If the winner-takes-all electoral system is inevitable, preliminary membership voting (primaries - elections within a party to pick the official party candidate) must be introduced into the Philippine electoral system and eventually required under the law. This means the choice of candidates presented by the party to the electorate will be decided by the many within a political party under penalty of law, away from the secret arbitration and negotiation of party leaders.
Section 5 (1) & (2) Lower House composition and manner of electing members
In General, the same as Section 2 (1) except that the party-list representation system instituted within the 1987 Constitution shall be expanded to cover all members of the Lower House. Given the expansion of such electoral system, sectoral representation now have a theoretical equal chance in obtaining legislative seats without fear of losing due to lack of financial capacity; the need to provide special election procedures for sectoral representation is moot. Through this, the advantage of candidates with considerable amount of spending power lavishing election periods with extravagant election campaigns shall be considerably lesser, resulting in the election of candidates based upon actual electoral legitimacy, not campaign war funds.
However, as a consequence of strengthening party politics, the registration of political parties in the Philippines must be closely guarded and heavily scrutinized by law to mitigate the issue of the relaxed nature of forming political parties, where traditional political parties unify under popular individuals or demagogues devoid of purpose, direction, and expertise. Indeed, a group of individuals intending to register their group as a political party must register their official manifesto (party platform) and be issue-based, disqualifying those groups whose main application are on the basis of their most popular or financially capable member.
Also, the number of seats in the House must reflect the current number of legislative districts in the Philippines. A certain maximum number of House seats must remain in effect; as representation is based on census, the issue of redistributing legislative districts ought to be in the discretion of the several states, as will be discussed in subsection (4).
(3) Qualifications of a legislative district
(4) Reapportionment of legislative districts
In order to maintain a federal form of government, the states ought to have the right to determine the composition of legislative districts within their boundaries. In the past, the Philippine Congress, based upon census, reapportions legislative districts as provided by the Constitution.
To remove the letter and spirit of centralization in the republic, one of the most important factors is giving the state a leading structural role in the reorganization of legislative districts. Delegating such considerable power to the states is essential to the federal structure in the sense that states without the power of reapportionment do not have the flexibility to respond to changing demographics and adapt to the demands of the times. If states cannot choose the manner in which it decides to be represented, the resulting consequence would be a federal legislature that, although may not under represent the people as a whole, misrepresent local constituents through past gerrymandering of legislative districts. Indeed, delegating such power to the states allows the existence of a district reapportionment system that tolerates the uniqueness of each state as a political unit.
All in all, if indeed we are serious in creating a federal system of government, power to reapportion legislative districts must be transferred to the several states.
Section 16 (3) Suspension of legislators
When a member of the upper and lower house has been suspended, his or her voting privileges are taken away with the suspension. Although prudence dictates that such legislators be punished, the unintended consequence of such corrective action is legislative districts or, in the case of senators, states losing their rightful representation.
But why should states and its residents be punished for an act that they were not responsible for? Why should they suffer for a crime which they did not commit? In response to this, I propose state legislatures ought to be allowed by majority vote to proxy vote in the federal legislature when federal legislators are suspended, provided that no election has occurred electing a representative or senator to replace the same. Such act of allowing transmutation of the majority vote of a state legislature to a federal legislative vote when a representation is suspended, treating it with the same effect and legitimacy of a vote of a federal legislator, solves the issue of non-representation during times of personal error in the part of a federal representative.
In this case, I must admit that full representation is more important than the efficiency and speed of delivering congressional duty.
Section 18 - Abolish the Commission on AppointmentIn a democracy, certain officials of the state were granted the power to appoint officials in the name of practicality and expediency. Elected officials are mandated to nominate, confirm, and then appoint other officials because it is unthinkable for the whole citizenry to do so. Hence, representative democracy was born in modern times. However, the relationship between the pursuit of accountability and efficiency are quite inverse; the more wants to have accountability the more one should less expect smooth decision making.
This is the dilemma at the heart of the Commission of Appointment. Slow scrutiny, as demanded by accountability, is expected by the people while smooth and quick deliberation of confirming appointed officials are necessary for the proper functioning of government. The compromise then was the creation of a special commission within the legislative branch, specifically tasked on approving nominations made by the chief executive.
But the problem with this commission is its exclusive nature. Even though half of the Senate is represented and an equal number is reserved for House members, the commission neither carry the popular and institutional legitimacy which the House or the Senate enjoys nor is it representative enough given that a commission with so few members represent the entire mandate of the people to confirm to their offices essential officers of the state.
The fact that in Philippine politics appointed officials frequently state that they were "serving under the leisure of the President" (thus, disregard the legislative confirmation in the appointing government officials ) serves to give notice to our legislators how limited the view of appointed officials regarding the appointment process; it also shows the importance of having either the upper or lower House, voting as a whole, to confirm the officers of the state and thus have a recognizable stake in their appointment.
Thus, in the name of legitimacy and expediency, I suggest transferring to a particular legislative branch, voting as a whole, which will have the least number of members (the Senate perhaps) in the amended 1987 Constitution the full responsibility of confirming nominated candidates. The trick here is persuading the other House that their powers will not diminish even if such House does not participate in confirming potential officers of the state. That such powers were only exclusively due to the speed which a single legislative body with fewer members can possibly provide, without having to sacrifice the institutional legitimacy it can confer, must be emphasized. Perhaps it should be also argued that the there are some powers that are exclusive to each House and such delegation was determined by their function, without prejudice to the co-equal essence of each house.
Or if the other House is not open to curtailing their confirming power, have the two Houses, voting as a whole, make the confirmation of nominated individuals a congressional priority, with a newly created appointment committees on each House making the crucial recommendation.
Section 22 - Executive Privilege of government officials
Executive privilege is exactly what it suggests - an executive's privilege, i.e., a privilege. The meaning of the word "privilege" suggests that the word is a benefit granted upon the assumption of office, not a right which absolves the holder of any wrongdoing in the eyes of the law. Indeed, one must emphasize that it is not a license to circumvent constitutional restrictions on governmental power but an waiver rarely used in order to fulfill a duty which requires substantial infringement of the social contract for the common good.
More so, executive privilege is and will always be subject to due process. Due process, if it is properly functioning, is capable of determining the need to temporarily allow a constitutional infringement for the common good. An impregnable executive privilege is tantamount to granting absolute power to hide abusive and ultra vires tendencies of governments, which history testifies as common.
The need for accountability and transparency ought to limit executive privilege when credible evidence suggests that such privilege is not being used to perform an essential official duty that requires constitutional infringement but for the advancement of personal gain.
Hence, the argument that executive privilege ought not to be questioned is unheard of in a liberal democracy, but is acceptable only in illiberal democracies or authoritarian regimes.
Section 25 (5) Fund disbursement by High Officials
(6) Abolish Discretionary Funds
Section 27 (2) Remove Line Item Veto
One always wonder why appropriation of public funds requires de facto approval by the Philippine chief executive. If we are to be reminded of the past, lawmakers were once called "tongressmen" for being morbidly corrupt. Virtuous rule by a statesmanlike figure such as former President Cory Aquino ensured that such lawmakers were kept under leash or so help us, they would spend public money like there is no tomorrow.
Unfortunately, her reign did not last, as provided for by the Philippine Constitution. Chief executives after her were accused of corruption while one even got convicted of plundering the nation's wealth. Without a doubt, what was once an office that ensured adherence to the law has become the very office which became the source of patronage, corruption, and utter disregard for the rule of law.
Therefore, the time has come for the executive branch to be reined in.
If the executive branch is to be kept under leash, one must abolish or remove the constitutional power which perpetuate and reinforce executive dominance in terms of appropriating public funds.
That executive prerogative is called the line item veto.
In the hands of a chief executive that adheres to the rule of law, a line item veto is a tool to be reckoned with, especially in terms of legislative excesses. However, in the hands of an ignoramus or a shrewd and corrupt chief executive, such power is extremely dangerous; indeed, line item veto had become the chief executive's threat to a particular legislator's pork barrel fund, a legislator whose crucial vote may determine the success of a pending bill beneficial to the chief executive.
Indeed, if line item veto is the chief executive's leash to corrupt legislators' public spending, what on earth can hinder the chief executive from using such veto power to influence a fellow corrupt legislator from voting the chief executive's way? What constitutional restriction could stop a corrupt chief executive from threatening a particular legislator's (perhaps even legitimate) pet projects with a line item veto, unless the legislator kowtow to the chief executive's whim?
As of current, none.
Line item veto is an executive power that is beyond the reach of the system of checks and balances enshrined in the Philippine Constitution. The very essence of a line item veto power negates the use of (1) normal veto, (2) congressional 2/3 override of presidential veto (as explained by the long absence of (1) and (2) in congressional journals, and it (3) discourages legislators from reconsidering their vetoed proposal, as long as their interest remains intact in the enacted bill.
I dare say that line item veto is the most efficient form of the executive's power to check legislative excesses. But the consequence of such efficiency is the very destruction of the separation of powers among the branches of government, as it allows the chief executive to wield tremendous "power of the purse," by micromanaging the time and manner public money is spent.
Indeed, such veto is a tool that, when used for good, can effectively check legislative misappropriation; but when used for bad, can slyly supersede accountability and transparency vital to a government under the rule of law.
For this reason, I propose that the line item veto power of the chief executive be stricken from the letter of the Philippine Constitution.
In consequence thereof, I propose the inclusion of a pocket veto in the amended charter, right before congressional adjournment or recess, to give additional flexibility to the chief executive and his ability to restrain what may be considered bad legislation.
One must also point out that the chief executive has not been completely disarmed by removing that specific kind of veto power. Normal veto remains intact, and it is sufficient to counter legislative abuses.
As an example, unlike the U.S. Constitution, the Philippine Constitution is explicit in the sense that the previous year's budget appropriations can roll over to the next until a new appropriations bill is passed by Congress. If the legislative branch exceeded its appropriation authority (by going beyond the proposed budget of the chief executive (Philippine Constitution, Article VI, Section 25 [1]), then the chief executive may use normal veto in order to fulfill his constitutional duty of checking legislative over-appropriation.
More so, the Constitution requires the chief executive to explain his "objections" to Congress (Article VI Section 27 [1], second sentence); perhaps, the best way to publicly rebuke those who proposed to increase the budget beyond congressional authority would be to explain as to why he objected, such as a lavish pork barrel spending.
If Congress insists that such legislation is passed, it is arguable that the chief executive can appeal to the public through the press before such legislation is passed over his veto, which in political lingo translates to a threat of failed incumbencies hanging over the heads of those legislators, leaving to the people to decide whether such legislation is appropriate in their judgment.
(4) Replace "tax exemption" with "tax deduction"; "all members of Congress" with "both Houses of Congress"
Civic duty obliges payment of taxes by citizens and those under the responsibility of the state. Congress ought to have the power to grant exemptions, but the power to grant tax exemptions must be de-emphasized in comparison to granting "tax deductions." No state can survive without considerable resources. Unless pertaining to institutions that traditionally have been tax exempt (such as the church and charitable institutions), tax exemptions are inimical to the stability of the state; hence, tax deductions are much preferrable.
Section 32 (Initiatives and Referendums - Put to the ballot explicitly unresolved questions to be decided by the people)
ARTICLE 7
Section 3 ( eliminate "no" on the second sentence i.e., Vice President requires approval)
Section 4 (President and Vice President elected together)
Section 8 (presidential incapacity - inability of the president to discharge the duties of his office; not only through written notice)
Section 9 appointment of SC Justices without congressional confirmation
Section 16 (power to nominate government officials)
Section 20 (Borrowing/foreign loans require specific legislative resolution/consent)
The Philippine Constitution empowers the chief executive to borrow foreign loans on behalf of the Republic "with prior concurrence of the Monetary Board and subject to such limitations as may be provided by law."
Once again, one sees the extensive reach of executive "power of the purse," enclosed in the supreme law of the land; only this time, instead of hiding within an explicit description of public appropriation, the "power of the purse" is hidden within the capacity of the chief executive to ask foreign lenders credit in exchange for an undetermined interest rate, thanks to executive privilege.
Yes, consent of the Monetary Board and limitations demanded by law, which Congress makes, provides a certain degree of accountability to executive borrowing. But given executive privilege, how is it possible for transparency to flourish under this current constitutional conditions?
Without congressional inquiry, lawmakers are unable to hold accountable the executive branch. Although the legislative branch may limit the chief executive through the laws it enacts, laws are insufficient checks to executive excesses (1) when they are neither updated nor tuned to limit the different approaches or new ways in which the chief executive do business with foreign lenders and thus get foreign loans; (2) even if the chief executive is restrained by existing laws, Congress is not allowed, to a certain extent, to demand scrutiny of executive agreements which may include foreign loans, a situation which is shielded from congressional inquiry by virtue of executive privilege.
Let us not forget that accountability is only possible when transparency exists. Without congressional scrutiny and consent on executive agreements, laws that limits how and how much the chief executive borrows are useless.
As a result, I propose that a specific congressional resolution noting the limit and duration of such borrowing authority, with each house voting separately, is required before the chief executive borrows foreign loans.
The power of the purse is not limited to appropriations of funds found inside the purse, but also funds that emanate outside the purse. The danger of delegating borrowing authority to a single officer of the state, with few or insufficient restraints, is a danger that can leads us not only to economic collapse, potential abuse and dire corruption, but also to the lost of our liberty to decide how our money is spent, whether be it for self-interest or the common good.
Section 21 (treaty ratification; executive agreements must be in compliance with Philippine laws)
Section 22 (address to congress; remove second sentence)
ARTICLE 8
Section 4 en banc decisions (finality decided by en banc); supreme court's right to hear cases by its own discretion
Section 5 (venue change for place of trial)
Section 8 Abolish the Judicial and Bar Council
In the most exclusive and ex officio fashion, the Judicial and Bar Council is tasked by the Philippine Constitution to determine the qualification of potential candidates to the judiciary. The council is empowered to recommend and disqualify applicants based upon legal, moral, and merit qualifications.
Indeed, the efficiency with which a select few members, emanating from various branches of government, private institutions, and the citizenry, can provide is exemplary: provided that the ultimate purpose of such council is to abjudicate a candidate's qualification by virtue of the council's expertise, not by its representativeness or as a call it "democratic credentials."
Indeed, this council represents the most elitist institution in the Philippine government. Membership is limited to the Chief Justice as ex officio Chairman, Justice Secretary, a retired Justice of the SC, a representative of the Integrated Bar, a law professor, and a "representative of the private sector -all of them non-elected officials and nominated by the chief executive.
Although in the past the council and its function may have been said as practical, its composition as a public institution is too undemocratic, and indeed, in a sense, oligarchial. Without a doubt, its inclusion in the 1987 Constitution was a step forward from the 1973 Constitution, which enabled the chief executive unlimited appointment powers.
But as a democratic polity, the Philippines deserves better.
Beholden to the chief appointing authority, this council, however morally endowed and meritoriously qualified, is outdated and must be abolished. Its credibility notwitstanding, the council lacks the popular legitimacy which a confirming authority such as the Philippine Senate can provide.
Indeed, because the legislative branch does not participate in the confirmation of the members of the SC, I have no qualm in saying that the system of checks and balances in terms of appointing the members of the Judicial department is non-existent; hence, in that sense, I am tempted to say that there is no such thing as "separation of powers" between the executive and judicial branches; the judiciary is a mere executive department whose main purpose is to project its theoretical independence to allow the perception of being a separate department.
Indeed, there is no de jure and de facto separation between executive and judicial appointments except that the Commission on Appointments (CA) confirms potential candidates in the executive branch while the judiciary are de facto confirmed by the Judicial and Bar Council; hence, I am obliged to say that appointed members of the executive branch have more electoral/popular legitimacy than members of the judiciary, while also noting that the CA's capacity to confer electoral/popular legitimacy is also questionable.
The argument that the appointment of SC Justices as being politicized when confirmed by a legislative body is inconsistent and baloney; the appointment of SC Justices is and has always been a political process; it is political because the people must have some say regarding magistrates who shall judge fairly among themselves; more so, it is very political because without the appointment of the chief executive, it is impossible for the Judicial Department to exist, if one has not noticed!
Regardless of whether such appointment has been politicized, politics end when a Justice (or Chief justice) assumes his position as a member of the judiciary, in which case, the separation of powers principle obliges the members of the judiciary to be impartial, whosoever favorably appraised or appointed them.
Oh, I am sorry, of course, in a society where debt of gratitude pervades in the political structure (which includes the judiciary), all of what I have said is irrelevant; what I have said only applies to democracies that seriously adheres to the notion of "separation of powers" and "checks and balances," not only dimwittedly profess or half-heartedly believes in such principles.
For this council to continue in its duty meant that the Filipino people is not yet ready to hold accountable and have a say on who shall judge over them, at least through legislators that act as representatives that confirm magistrates of justice.
Section 14 (requirement to explain refusal for judicial review)
ARTICLE 9
(A) Section 6 (make clear second sentence)
(C) COMELEC - gradual abolition of its natural essence; states shall, by their own election commission manage elections
ARTICLE 10 (delete)
ARTICLE 11
Section 3 (3) delete 1/3; replace with majority of House members
Section 9 appointment of Ombudsman; require congressional approval
Here is another constitutional office whose "independence" is questionable.
Perhaps the intent of the 1987 framers was the creation of an investigative body beyond the influence and control of the three branches of government, having the sole power to prosecute and suspend alleged corrupt government officials.
The lack of the need for legislative confirmation of the Office of the Ombudsman suggests that members of Congress at that time were among the targets of investigations by the Ombudsman, which can explain the need for an exclusive executive appointment, only constrained by qualification processes of the Judicial and Bar Council.
Indeed, the 1987 framers, in this sense, relied heavily on the chief executive to appoint an individual of outstanding capacity to fulfill the duties delegated to this office; having in mind that giving members of the legislative branch, who may themselves be potential targets of investigations of the Ombudsman, confirming powers to the occupants of the investigative body as inimical to the pursuit of justice against corrupt officials given the zeitgeist of corrupt practices at that time, the 1987 framers saw the necessity of weakening the system of checks and balances in favor of the chief executive, perhaps earnestly banking on a chief executive devoid of immoral and corrupt practices himself.
But what if the chief executive is himself, corrupt? How does the institutional mechanism within the Constitution address this problem? Given the array of exclusive prerogative granted upon the chief executive, how can he be held accountable for his actions?
Line item veto ensures congressional indifference and incapacity; near absolute appointing powers enable the appointment of government officials who are beholden to, influenced by and swear allegiance to the chief executive, rather than the Constitution; and appropriation powers of the chief executive is extensive to the point of the news media being accustomed to the Office of the President appropriating, giving, and releasing public money.
This is where, I believe, the 1987 Framers failed in their wisdom.
By forgetting that the system of checks and balances through an equal separation of powers by itself repairs institutional malfunction by fitting evil against evil, the 1987 framers relied too much on moral leadership to counter government excesses, forgetting what the American political philosopher/founding father/President, James madison, one of the architects of the U.S. federal system of government, meant when he said "ambition must be made to counteract ambition."
Indeed, Although the 1987 framers may have determined that a powerful but benevolent ruler (in the form of a strong presidency) is the answer to the corruption that ever cripples the government in the eyes of the general public; but how did they come to the conclusion that such an individual exists and more so, even if he does exist, he may continue his benevolent rule long after the Constitution so prohibits?
Thus, in a representative democracy, where the ruled and the ruler constantly rotate, moral leadership cannot replace in importance the concept that enables the branches of government to mind each other's business -- the system of checks and balances through equal separation of powers (hence, equal capacity to check each other's act) -- in order to remove the corruption that cripples government legitimacy and effectiveness.
By giving too much power to the chief executive, there exists an unequal separation of powers and the system of checks and balances is fundamentally and inherently ineffective to counter potential abuses by the chief executive because the Constitution itself is favorably leaning towards a strong presidency.
ARTICLE 12
Section 2 (abolish the 60 per centum Filipino ownership requirement for corporations that seeks to tap natural resources on public domain)
Section 10 replace "shall" with "may"
3rd sentence - delete
ARTICLE 14
Section 6 (no national language; english is lingua franca)
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